Connie Kelley and Donald Kelley v. United States of America

April 20, 2012

CONNIE KELLEY AND DONALD KELLEYPLAINTIFFS,v.UNITED STATES OF AMERICA DEFENDANT.

The opinion of the court was delivered by: DuBOIS, J.

MEMORANDUM

I. INTRODUCTION

Plaintiffs bring this action pursuant to the Federal Tort Claims Act,
28 U.S.C. § 2671 et seq., alleging that defendant's negligent
inspection, maintenance, and warnings with respect to a slippery "deck
surface/walkway" at Valley Forge National Historical Park ("the Park")
caused injury to plaintiff Connie Kelley. Presently before the Court
is defendant's Motion to Dismiss or, in the Alternative, for Summary
Judgment. For the reasons that follow, the Court grants defendant's
Motion to Dismiss and dismisses the action with prejudice.*fn1
The alternative Motion for Summary Judgment is denied as
moot.

On November 28, 2010, plaintiffs visited Valley Forge National Historical Park in King of Prussia, Pennsylvania. (Am. Compl. ¶ 14; Pl.'s Opp. Mot. 2.) While at the Park, Ms. Kelley slipped and a fell on a "man-made walkway[] constructed of vinyl" ("the deck surface/walkway"*fn3 ). (Am. Compl. ¶¶ 11-12.) Plaintiffs describe the purpose of the deck surface/walkway as "aid[ing] ingress and egress to redoubts and other historical structures." (Id. ¶ 11.) According to the National Park Service's Incident Report, attached to the Amended Complaint,*fn4 the deck surface/walkway leads to an "overlook platform to the Fort Washington's redoubt."*fn5 (Id. Ex. A, at 2). Plaintiffs allege that Ms. Kelley fell because of a "slick, slippery" condition, (id. ¶ 14), and the Incident Report adds that "[t]here were many leaves on the pathway along with moisture," (id. Ex. A, at 4). Plaintiffs aver that "the vinyl walkways [in the Park] require regular maintenance in order to be used and enjoyed safely." (Id. ¶ 13.)

Ms. Kelley's right patella was fractured in the fall, and she alleges that her right leg is permanently scarred and disfigured. (Id. ¶ 17.) She also claims to have suffered nerve damage and "contusions, abrasions, and lacerations over various portions of her body." (Id.) As a result of Ms. Kelley's injuries, Mr. Kelley avers a continuing loss of consortium. (Id. ¶ 27.)

B.Plaintiffs' Allegations Regarding the Development and Commercial Nature of the Park

According to plaintiffs, the Park "charges fees for various activities and attractions in the park-area, . . . including . . . a ninety (90) minute guided trolley tour of the entire park; a compact disc driving tour which can be purchased for use in a visitor's car; a 'step on guide services'; fee based formal education programs; and, fees for various activities in the park itself." (Id. ¶ 10.) Plaintiffs state that the park has "undergone 'significant renovations' and rehabilitation within the last three (3) years, including renovation of the train station, lifeguard huts, waysides added to the landscape, and man-made walkways constructed of vinyl." (Id. ¶ 11.)

III. LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that, in response to a pleading, a defense of "failure to state a claim upon which relief can be granted" may be raised by motion to dismiss. To survive a motion to dismiss under Rule 12(b)(6), a civil plaintiff must allege facts that "raise a right to relief above the speculative level." Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 570). To satisfy the plausibility standard, a plaintiff's allegations must show that defendant's liability is more than "a sheer possibility." Id. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

In Twombly, the Supreme Court used a "two-pronged approach," which it later formalized in Iqbal. Iqbal, 129 S. Ct. at 1950; Fowler v. UPMC Shadyside, 578 F.3d 203, 210-- 11 (3d Cir. 2009). Under this approach, a district court first identifies those factual allegations that constitute nothing more than "legal conclusions" or "naked assertions." Twombly, 550 U.S. at 555, 557. Such allegations are "not entitled to the assumption of truth" and must be disregarded. Iqbal, 129 S. Ct. at 1950. The court must then assess "the 'nub' of the plaintiff['s] complaint-the well-pleaded, nonconclusory factual allegation[s] . . . to determine" whether it states a plausible claim for relief. Id.

IV. DISCUSSION

Plaintiffs claim that defendant negligently inspected and maintained the deck surface/walkway and failed to warn of the dangerous conditions that allegedly caused Ms. Kelley's accident. (Am Compl. ¶ 23.) In its motion to dismiss, defendant asserts that Pennsylvania's Recreational Use of Land and Water Act ("RUA") bars liability unless the Park maliciously or willfully failed to guard or warn against a dangerous condition. (Mot. Dismiss 3.) Plaintiffs have not alleged that the Park's conduct was malicious or willful. Instead, they argue that RUA does not bar liability in this case because even on land covered by RUA, a landowner has a duty to maintain improvements that the ...

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